The legal issues
According to reports, Ms Torpey alleges that Mr Robinson made discriminatory comments about an employee occupying her position after she announced that she was pregnant with her second child. In March, the Employment Tribunal heard that Mr Robinson had told Ms Torpey that to carry out her role as managing director of Kew with one child would be “very difficult,” but that with two children she would be “totally useless” in the role. Mr Robinson entirely disputes these claims.
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What is the position with regard to pregnancy discrimination? It is unlawful for an employer to discriminate directly by treating a female employee less favourably than a male employee because of her sex e.g. if an employer prevents a woman’s career progression because she has or may have one or more children. It is also unlawful for an employer to discriminate indirectly by applying a provision, criterion or practice that puts females at a particular disadvantage compared with males, without objective justification.
At the hearing, Ms Torpey produced an email which was apparently sent by Mr Robinson whilst she was still on maternity leave in which he said that she had “lost her confidence” and that her “main aim was to have children.” On her return to work, she was given a part-time finance director role which had been suggested for her by another director. Ms Torpey has claimed that the company decided to create a new position of Chief Financial Officer and that Mr Robinson vetoed her appointment to this position because of his attitude to her becoming pregnant again. Ms Torpey has argued that his email showed that Mr Robinson believed she ”lacked commitment to the business and was no longer professionally ambitious having had children.”
As soon as an employee becomes pregnant she enters a protected period which, if she has the right to take ordinary maternity leave (OML) and additional maternity leave (AML), continues until the end of the AML or (if earlier) when she returns to work from maternity leave. During this protected period, if she receives unfavourable treatment because of her pregnancy or her statutory maternity leave, this will be unlawful pregnancy and maternity discrimination. A pregnant woman or woman on maternity leave is also protected against being subjected to a detriment. So, for example, if an employer fails to promote an employee because of her pregnancy or maternity leave, this will constitute unlawful pregnancy and maternity discrimination. Further, any dismissal for reasons connected with an employee’s pregnancy, the fact that she has given birth or the fact that she takes or wants to take maternity leave, will be automatically unfair.
All employees are entitled to 56 weeks maternity leave; 26 weeks OML and 26 weeks AML, regardless of their length of service (there are qualifying criteria for statutory maternity payments). On return from maternity leave an employee is generally entitled to return to the same job in which she was employed before her absence on the same or not less favourable terms than if she had not been absent. If the employer does not permit this, the employee may have a claim for pregnancy and maternity discrimination and automatic unfair dismissal and/or unlawful detriment.
In this case, Mr Robinson is also alleged to have rejected Ms Torpey’s suggestion that she return to her role as MD of Kew four days a week, claiming that the role required working six days a week, as her job was too senior to go part time. This case is a reminder that employers must take care with flexible working requests. An employee returning from maternity leave has the right to request flexible working (as do other qualifying members of staff). Employers must give proper consideration to any such request, and follow the statutory procedure. Requests can only be refused on statutory grounds and a failure to follow the process properly may give rise to a sex discrimination claim, and an employer will have to be able to show good business reasons for refusing a flexible working request in order to defend any such claim.
The compensation that can be awarded by an Employment Tribunal to an individual for a successful discrimination claim is uncapped, so the potential liabilities are significant if things go wrong. There is also the potential administrative and publicity upheaval that Tribunal proceedings can bring.
Practical tips
What can employers do to avoid the pitfalls of this case? Much of this will be HR driven:
- Ensure equal opportunities policies include maternity and pregnancy as protected characteristics and take care to ensure these are kept up to date.
- Provide training to the HR team, managers and senior employees on company policies and statutory rights and requirements in relation to pregnancy, maternity leave and flexible working.
- Avoid making assumptions and stereotyping employees. Instead judge them based on individual performance.
- In particular, ensure that even senior employees and directors understand not to make any statement or communication criticising another employee in relation to any ground related to their sex.
- Consider if any accommodation needs to be made to any procedures (such as sickness procedures) as a result of pregnancies.
- Keep employees who are pregnant or on maternity leave up to date with important business developments including vacancies, promotions and training opportunities and consider them equally with other employees for such opportunities. There is a balance to be maintained, however, with contacting employees on maternity leave. Too much contact can pose the risk of employees claiming that they feel stressed or harassed by it. Contact should only be of a reasonable level.
- Ensure that maternity returners are permitted to return to the same role (unless this is impossible).
- Ensure any refusal of a flexible working or job share request is properly thought through and supported with evidence as to why it is unworkable in the business.
- Don’t forget keeping in touch days which are available for employees on maternity leave!
About the author
Gagandeep Prasad, Senior Associate, Charles Russell LLP
Gagandeep is primarily a corporate employment lawyer, advising clients on all aspects of employment law, both litigious and advisory. She has considerable experience in drafting and advising on a variety of employment documentation and dealing with the employment aspects of large transactions and restructurings. Gagandeep also has substantial experience in conducting Employment Tribunal litigation, carrying out audits for clients to assess employment risks and engaging in commercial settlement negotiations in order to resolve disputes cost effectively. She regularly advises clients on practical HR issues focussing on the commercial needs of the client, in areas such as policies and contracts, redundancy, discrimination, grievances and dismissals. Gagandeep also speaks at Charles Russell seminars and internal client training sessions. Email:gagandeep.prasad@charlesrussell.co.uk
